ATWOOD & ATWOOD - [2020] FamCAFC 153

FAMILY COURT OF AUSTRALIA

ATWOOD & ATWOOD

[2020] FamCAFC 153

FAMILY LAW – APPLICATION IN AN APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Whether there are merits in the grounds of appeal which justify the provision of transcript – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Sampson & Hartnett(Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220

APPLICANT:

Ms Atwood

RESPONDENT:

Mr Atwood

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3943

2014

APPEAL NUMBER:

118

2019

DATE DELIVERED:

26 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (by telephone)

JUDGMENT OF:

Ryan J

HEARING DATE:

19 June 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 September 2019

LOWER COURT MNC:

[2019] FamCA 759

REPRESENTATION

THE APPLICANT:

Self-represented

THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders made 19 June 2020

That the applicant be granted leave to make an oral application to dispense with Order 1.24 of the Procedural Orders made by the Regional Appeals Registrar on 28 April 2020.
That the applicant be permitted to proceed with her appeal without having included in the appeal books the transcript of proceedings 9, 10, 11 April 2018, 13 August 2018, 10 September 2018 and 16 November 2018.
That the Application in an Appeal filed 7 May 2020 otherwise be dismissed.
That the costs of the applications be costs in the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 118 of 2019
File Number: SYC 3943 of 2014

Ms Atwood

Applicant

And

Mr Atwood

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Ms Atwood (“the mother”) seeks to appeal certain final parenting, property and costs orders made by the primary judge on 20 September 2019 (“the orders”).
In broad terms, the parenting orders provide for:
·Mr Atwood (“the father”) to have sole parental responsibility for the parties’ child, B, born 2006 (“the child”) (Order 2);
·that the child live with him (Order 1);
·the mother have no contact and spend not time with the child (Order 3); and
·for the father to cause the child to attend upon a family consultant for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ATWOOD & ATWOOD

Details

AGLC: ATWOOD & ATWOOD [2020] FamCAFC 153
Case: [2020] FamCAFC 153
Decision Date: 26 June 2020

CaseChat Overview and Summary

In this case, the mother, Ms Atwood, seeks to appeal certain final parenting, property and costs orders made by the primary judge on 20 September 2019. The father, Mr Atwood, is the respondent, and the Independent Children's Lawyer, represented by Legal Aid NSW, is also a party to the proceedings. The main legal issues the court had to decide were whether the court should pay for the transcript of the proceedings at its expense, and whether there are merits in the grounds of appeal that would justify the provision of the transcript. The court considered the nature of the proceedings, the financial circumstances of the applicant, and the prima facie merits of the appeal in making its decision.

The court found that the mother's appeal did not challenge the care arrangements for the child in any substantial way, nor did it raise questions about risks to the child. The challenge seemed to be based upon international covenants as to the rights of children, which the court agreed with the submission of the Independent Children's Lawyer, was unlikely to attract appellate intervention. The property appeal also did not clearly indicate a sound basis for appellate intervention. The court found that there were not exceptional circumstances which would persuade the court to pay for the trial transcript. However, the mother clarified during the hearing that she only needed a few pages which contained an exchange between the primary judge and those appearing concerning costs. The court allowed the mother to advance her appeal without provision of the transcript of proceedings at first instance, as the limited scope of the appeal lent itself to this course.

The court dismissed the mother's application for the court to pay for the transcript of proceedings at its expense. However, the court granted the mother leave to make an oral application for permission to conduct her appeal without filing the trial transcript. The mother was advised to make arrangements with the Registry Manager to listen to the audio recording of the trial so as to identify precisely where the exchange as to costs is located. The court took into account that the primary judge made extensive findings in relation to the oral evidence, none of which seem to be under challenge. The court also considered that it seemed to be in the interests of justice to allow the mother to advance her appeal without provision of the transcript of proceedings at first instance.

In summary, the court found that the mother's appeal did not have strong grounds, and there were not exceptional circumstances which would persuade the court to pay for the trial transcript. However, the court allowed the mother to advance her appeal without provision of the transcript of proceedings at first instance, as the limited scope of the appeal lent itself to this course. The court granted the mother leave to make an oral application for permission to conduct her appeal without filing the trial transcript, and advised her to make arrangements with the Registry Manager to listen to the audio recording of the trial so as to identify precisely where the exchange as to costs is located.

Orders